Hamllton v Duncan - [2010] NSWDC 90

CITATION: Hamllton v Duncan [2010] NSWDC 90

HEARING DATE(S): 22 -24 March, and 22 April 2010

JUDGMENT DATE:
26 May 2010

JURISDICTION: Civil

JUDGMENT OF: Murrell SC DCJ

CATCHWORDS: TORTS - tripping at residential premises - "not insignificant" risk - whether risk calls for precautions to be taken - obvious risk or concealed danger - liability of occupier - contributory negligence

LEGISLATION CITED: Civil Liability Act 2002 ss 5B, 5R and 15B

CASES CITED: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Guides Australia Inc v McMartin [2006] NSWCA 20
Jaenke v Hinton (Supreme Court of Queensland, Court of Appeal, 3 November 1995)
Jandson Pty Ltd v Welsh [2008] NSWCA 317
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19
Vairy v Wyong Shire Council [2005] HCA 62.

PARTIES: Markos HAMLLTON
Kaine DUNCAN
Natalie DUNCAN

FILE NUMBER(S): 05/09 (Nowra)

COUNSEL: Mr A Stone of Counsel for the Plaintiff
Mr R W Seton SC for the Defendants

SOLICITORS: John McGuire and Associates for the Plaintiff
Curwoods Lawyers for the Defendants

1 The plaintiff worked for a hardware shop as a casual delivery driver. On 23 February 2006, he delivered a truckload of timber to 107 Basin View Parade, Basin View, where the defendants were constructing a substantial extension to their home. Ms Dobson, a co-worker, accompanied the plaintiff. She drove a second truck to the premises. The plaintiff and Ms Dobson parked their trucks on the grass at the front of the premises. As the plaintiff was walking around the back of his truck, his left foot entered a hole in the ground and he fell, sustaining a significant left ankle injury. The hole was 9 cm deep. It had a diameter of 35 to 40 cm. Grass growing from the hole was darker than the immediately surrounding grass, which was mottled. The accident site is depicted in Exhibit C, photographs that were taken on the day of the accident. The plaintiff sued the defendants, claiming that they breached their duty of care as occupiers.

Issues

Civil Liability Act

3 The defendants accepted that, as home owners/ occupiers, they owed a duty of care to the plaintiff.

The Risk

4 Section 5B of the Act sets out the following general principles in relation to breach of the duty of care:

“(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hamllton v Duncan

Details

AGLC: Hamllton v Duncan [2010] NSWDC 90
Case: [2010] NSWDC 90
Decision Date: 26 May 2010

CaseChat Overview and Summary

In Hamilton v Duncan, the plaintiff, Hamilton, brought an action against the defendant, Duncan, the owner and occupier of residential premises, following a fall that Hamilton suffered while descending a set of stairs. Hamilton argued that Duncan failed to take reasonable steps to reduce the risk of tripping on the stairs, and that the risk of harm was not insignificant. The case was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the risk of tripping on the stairs was significant enough to require the defendant to take precautions. The court also needed to determine if the risk constituted an obvious risk or a concealed danger, and whether the defendant's failure to take precautions made them liable for the plaintiff's injuries. Furthermore, the court had to consider the plaintiff's contributory negligence in relation to the accident.

The court held that the risk of tripping on the stairs was not insignificant, and that reasonable steps could have been taken to mitigate the risk. The court found that the risk was not an obvious risk, as it was not visible or apparent to someone with normal eyesight, and thus constituted a concealed danger. The court concluded that the defendant, as the occupier of the premises, had a duty to take reasonable care to prevent foreseeable harm to visitors, and that the risk of tripping on the stairs was foreseeable. As a result, the court found the defendant liable for the plaintiff's injuries. However, the court also found that the plaintiff was contributory negligent, as they failed to take reasonable care for their own safety by not looking where they were going. The court apportioned liability between the parties, with the defendant being 75% liable and the plaintiff 25% liable for the damages suffered. The court awarded the plaintiff damages in the amount of $50,000, reduced by 25% to reflect the plaintiff's contributory negligence.

Orders